Conservation groups that previously sued over the updated resource management plan for the Uncompahgre Field Office of the Bureau of Land Management now contend the plan is void, because at the time of its approval, William Perry Pendley was illegally exercising the authority of the BLM’s acting director.
Citizens for a Health Community based in Paonia, along with High Country Conservation Advocates, the Center for Biological Diversity, the Sierra Club, Western Watersheds Project and WildEarth Guardians on Tuesday amended their previous suit challenging the resource management plan, or RMP.
The plan guides public land use on 675,800 acres of BLM-administered surface lands and 971,220 acres of federal mineral estate, including in the North Fork Valley.
The groups contend the U.S. Department of the Interior and other defendants relied on inadequate science and analyses, while failing to properly consider climate change and the Gunnison sage-grouse. They say the plan could open up to 95% of the lands it covers to oil and gas development.
The plaintiffs in their most recent filing contend that because Pendley was found by a federal court order to be serving in that capacity illegally, actions the agency took under his leadership are void by law.
Although the plaintiffs say Pendley exercised the authority of BLM director when the Uncompahgre plan was approved, information provided by the U.S. Department of the Interior says Pendley is deputy director for Programs and Policy.
“This amendment to our challenge of the Uncompahgre (resource management plan) reflects a reality that is now established under legal precedent: Pendley’s authority as bureau director is invalid and planning decisions approved on his watch are likewise invalid,” said Melissa Hornbein, a staff attorney with the Western Environmental Law Center, in a news release announcing the amended suit.
The groups’ complaint says Pendley was appointed by an Interior Secretary order that was amended four times to extend the appointment, but that Pendley’s nomination has not cleared the U.S. Senate. The RMP for the BLM Uncompahgre Field Office is “invalid as a matter of law” because Pendley improperly exercised the authority of the BLM director when it was finalized, the suit says.
The environmental groups amended their initial suit from this summer about a week after a federal court overturned three other resource management plans approved under Pendley’s tenure.
The U.S. District Court in Montana in granting a motion for summary judgment brought by the Montana Department of Natural Resources and Conservation and the state’s governor partly enjoined Pendley from exercising the authority of BLM director.
The court through that order determined “further relief likely should be granted under the FVRA (Federal Vacancies and Reform Act) and APA (Administrative Procedures Act),” and that “‘any function or duty’ of the BLM director that had been performed by Pendley would have no force or effect and must be set aside as arbitrary and capricious.”
The court also sought additional briefing as to which of Pendley’s acts should be set aside as unlawful. Several of the same plaintiffs in the Uncompahgre RMP suit filed for permission to submit an amicus (friend of the court) brief detailing Pendley’s actions beyond Montana that could be implicated.
The federal court in Montana declared three resource management plans in that state to be unlawful and set them aside, however, it denied the conservation groups’ request to file an amicus brief.
The U.S. Department of Interior blasted the groups’ suit over the Uncompahgre RMP.
“These special interest groups are trying to impose their radical environmental agenda on the hard-working people of Colorado, negatively impacting recreation access, conservation and energy development,” the agency said in an email from spokesman Derrick Henry.
The Uncompahgre plan was signed by the BLM’s Colorado state director, not Pendley, who is identified as deputy director of programs and policy, the information provided by Interior says. The state director, Jamie Connell, is also named in the environmental groups’ suit, as are Interior Secretary David Bernhardt, Pendley, the BLM’s Southwest District Manager, the acting field manager for the Uncompahgre Field Office and the U.S. Fish and Wildlife Service.
Interior has disputed the ruling in the Montana case, saying it lacked the legal standing necessary to even be heard and that legal precedent is on the agency’s side.
“The Department of the Interior believes this ruling is erroneous, fundamentally misinterprets the law and unreasonable attempts to upend decades of practice spanning multiple presidential administrations from both parties,” Solicitor of the Department of the Interior Daniel Jorjani said in a provided statement concerning the federal court in Montana’s decision on Pendley’s status.
“Nevertheless, the department will comply the the court’s order while we move forward with an appeal and review all other legal options.”
Interior notes that the BLM hasn’t had a Senate-confirmed director of the BLM during the Trump Administration, nor has it named an acting director.
Citizens for a Healthy Community and the other plaintiffs maintain in their amended filing that BLM violated the National Environmental Policy Act and other federal laws in selecting Alternative E for the Uncompahgre Resource Management Plan.
The suit contends the agency did not analyze a reasonable range of alternatives, including the community-driven “North Fork Alternative” that would have closed some areas to oil and gas leasing, with stricter surface use restrictions on places where leasing was allowed.
“The bureau’s proposal of a new preferred Alternative E, out of whole cloth, in contradiction of state recommendations, in defiance of over 50,000 public comments and outright disregard for protests from the state of Colorado, county and municipal governments and the public, were all under Pendley’s watch,” Natasha Léger, executive director of Citizens for a Healthy Community, said in the groups’ press release.
“The Uncompahgre Resource Management Plan should be invalidated just like the Montana RMPs were under his tenure.”
The conservation groups also allege the BLM failed to take a good look at the impacts of greenhouse gas pollution; methane emissions and global warming potential, also in violation of NEPA.
The defendants further did not define and prevent unnecessary or undue degradation in terms of climate impacts, the suit says. Similarly, the defendants did not take a hard enough look at how wildlife, including the Gunnison sage-grouse and its habitat, would be affected. The bird is listed as a threatened species.
The complaint also hammers the BLM and U.S. Fish and Wildlife Service for allegedly not following the best science and for using a biological opinion reliant on unsupported assumptions.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.